er. Counsel certainly misapprehend the force of the provision quoted.

Section 3 of the act of 1897 is attacked, also, as violating the same section and article of the federal constitution, in that it provides that none of the provisions of the "act shall apply to any person engaged in business as a wholesale dealer, who does not sell in less quantities than five (5) gallons at a time," and thereby discriminates in favor of wholesale dealers, who are permitted to makes sales without a license, while a retail dealer is not permitted to make a like sale without a license. This is said to be an arbitrary and unreasonable classification, while it is conceded that a reasonable classification is proper. As we have construed the law, every one who desires to sell to consumers must take out the license required, unless he shall desire to sell in quantities of five gallons or more, in which event no license is required. As between those who can have a license there is no opportunity for discrimination. Whether he is a druggist, a brewer, distiller, or other manufacturer or dealer, if he sells in quantities of five gallons or more he is a wholesale dealer, and if he sells to consumers in quantities less than five gallons at a time he is required to take out a license. The only discrimination, therefore, is as to the person who is permitted to obtain a license. Nothing in the record suggests even a presumption that the appellant could not obtain, upon equal terms with any one, a license to sell at retail, or in quantities less than five gallons, such as he is here charged with making. As held in Wagner v. Town of Garrett, 118 Ind. 114, 20 N. E. 706, the appellant may not complain that he can enjoy privileges which others cannot enjoy. However, we have no doubt that the concession of the appellant that the legislature may make a reasonable classification is correct. The sale of intoxicants has always been held subject to control by the police power of the state. The police power belongs to the state, and not to the federal government. In its exercise the state may make such regulations as will promote the health, morals, and good order of society. Questions of sex, age, and moral fitness have always been regarded as proper subjects of legislative control; and, if the appellant could complain that corporations were not permitted to take out a license, we may suggest, without deciding, that it is not an unreasonable restriction which requires that the holder of a license to conduct a business fraught with so many dangers shall be one subject to the processes of the law and the enforcement of criminal punishment,-one whose identity may not be so confused with that of his associates in business as to make it difficult, if not often impossible, to detect abuses and visit the prescribed punishment upon the offender. The judgment of the lower court is affirmed.

1. Where two parties exchanged real estate, and one of them agreed, as a part of the consideration, to pay off a certain incumbrance on the land deeded by her, which she failed to do, and the other party was compelled to pay off said incumbrance, he may proceed against his grantee for the amount so paid, and enforce a vendor's lien therefor on the property conveyed by him.

2. Where the consideration in a deed is stated in general terms, the true consideration may be shown by either party by parol evidence, for any purpose, except to defeat the deed as a valid grant; and it may be shown that the grantee verbally agreed, as a part of the consideration, to pay an incumbrance existing on the real estate conveyed.

3. Where the record does not show that the bill of exceptions was filed with the clerk, or in open court, the evidence is not before the appellate court, and it will not review any questions depending thereon.

Appeal from circuit court, Howard county; W. W. Mount, Judge.

Action by David E. Downey and others against Irene Lowery. There was a judgment for plaintiffs, and defendant appealed. Affirmed.

Kirkpatrick, Morrison & McReynolds, for appellant. Moore & Cooper, for appellees.

JORDAN, J. Appellees filed in the lower court a complaint in two paragraphs against the appellant, for the recovery of money, and to enforce a vendor's lien against the real estate described in the complaint. Appellant demurred to each of these paragraphs, which demurrer was overruled, and exception duly reserved. There was an answer and reply filed by the parties respectively, and the issues as joined were tried by the court; and, by request, there was a special finding of facts and conclusions of law thereon, upon which the court, over appellant's exceptions, and over her motion for a new trial, rendered judgment in favor of appellees for $160, and for a foreclosure of the vendor's lien. The errors assigned are: First, that the court erred in overruling the demurrer to each paragraph of the complaint; second, that the court erred in its conclusions of law; third, in overruling the motion for a new trial.

We need not stop to consider the sufficiency of the first paragraph of the complaint, as the special finding affirmatively discloses that the judgment rests wholly on the second paragraph; and under such circumstances, even though the insufficiency of the first paragraph be conceded, the overruling of the demurrer thereto would not be available error. Burkam v. Burk, 96 Ind. 270; Railroad Co. v. Maddux, 134 Ind. 571, 33 N. E. 345, and 34 N. E. 511; Putt v. Putt, 149 Ind. 30, 48 N. E. 356; Elliott, App. Proc. § 637.

The second paragraph of the complaint alleges facts which, in substance, are as fol

lows: The plaintiffs, on the 29th day of October, 1894, were the owners in fee simple of certain described real estate situated in the city of Kokomo, Howard county, Ind., which on that day they sold and conveyed by warranty deed to the defendant, Irene Lowery, for the consideration of $7,700. That the plaintiffs were to receive, in consideration for the conveyance of the said real estate to the defendant, other real estate described in the complaint, situated in the city of Frankfort, in Clinton county, Ind., the same to be conveyed to the plaintiffs by the defendant, subject to a mortgage lien existing thereon for $1,800, held by one Zimmerman, and also to be subject to the taxes for 1894, but subject to no other liens. This agreement, it is averred, was reduced to writing, and signed by the plaintiffs and the defendant, Mrs. Lowery, and also by her husband. After the execution of this contract by the parties, and before the execution by the plaintiffs of the deed conveying their Kokomo property to the defendant, it was discovered that certain other mortgage and judgment liens existed against the Frankfort property which Mrs. Lowery was to convey to the plaintiffs in consideration of the property to be conveyed to her by them. These liens were not mentioned in the contract, nor were the plaintiffs, under its terms, obligated to either pay the same, or take the real estate to be conveyed to them by Mrs. Lowery subject thereto. After the plaintiffs became aware of the existence of these liens, they declined to proceed any further in the transaction, or to close the trade by the delivery of the deed to the defendant for their Kokomo property until the liens in question were paid by the defendant, or provision for their payment and satisfaction made by her. Thereupon the defendant, Mrs. Lowery, in order to induce the plaintiffs to complete the trade, and for the purpose of obtaining the title from the plaintiffs to the Kokomo property, verbally agreed with and promised them that, as a part of the consideration for the said property, she would fully pay off and discharge and satisfy these liens which existed on her Frankfort property within 10 days thereafter. This promise and obligation, made upon the part of Mrs. Lowery, was accepted by the plaintiffs; and thereupon, on account of the same, plaintiffs were induced to, and did, deliver to the said defendant a deed for their property in Kokomo, whereby the title to the same was conveyed to said defendant. It is alleged that the defendant wholly failed to keep her said promise to pay off and discharge said liens; and that the plaintiffs, in order to protect the Frankfort property which the defendant had conveyed to them, were finally compelled to, and did, pay off and satisfy these liens; and that no part of the money so paid by them in the discharge and satisfaction of the liens has been repaid by the defendant; and that the money so paid is now due and wholly unpaid, to the

amount of $400. The fact that the defendant is insolvent, and that she has no property other than that conveyed to her by the plaintiffs, is shown; and the prayer is for a judgment against the defendant for the money alleged to be due the plaintiffs as purchase money, and that a vendor's lien be declared and foreclosed against the real estate so conveyed by them to the defendant.

Counsel for appellant claim that the paragraph is not sufficient on demurrer, for the reason that the parol agreement relied on was merged in the deed of conveyance executed by the appellees to appellant, and as it does not appear that this deed provided for the payment by the appellant of the liens in controversy "as a part consideration of the purchase money." Therefore it is said that the pleading is not sufficient to enforce a vendor's lien. Appellees contend, however, that they are not seeking to change the terms or provisions of any written contract or deed by a previous or contemporaneous parol agreement, but are only seeking to show thereby what the real and true consideration was which entered into the execution of the deed conveying their real estate to appellant. It may be said that the facts alleged in the second paragraph show that the transaction or deal between the parties to this action was in the nature of an exchange of property. By the averments of the pleading, it is disclosed that under the terms of the written contract, executed prior to the verbal agreement in dispute, appellees were to accept from appellant a deed of conveyance to her property situated in the city of Frankfort, subject to a certain mortgage lien, and also subject to the lien of the taxes of 1894; but this property was not to be taken by appellees subject to any other lien or liens. They were to accept it, as previously agreed, as the consideration for the conveyance to appellant of the Kokomo property. Before the final transfer of the latter to appellant, however, it was ascertained that the liens in controversy existed against the Frankfort property in addition to those subject to which appellees had by the original contract agreed to accept said property. The latter, on discovering these additional liens, it appears, refused to further proceed in the matter until appellant either paid and satisfied such liens or made provision for their payment. In order, then, as it is shown, to induce appellees to consummate the deal, and finally execute to appellant a deed, which they did, for the real estate in Kokomo, the latter verbally agreed to pay and satisfy the liens in question within 10 days, as a part or further consideration for the conveyance of the latter property to her. We think it reasonably appears from the facts that, under the parol agreement, the payment and discharge of these liens by appellant expressly became a part of and entered into the consideration upon which the conveyance of the Kokomo property rested; and the failure of appellant to comply with

her agreement to pay and satisfy them, and thereby relieve the property from these incumbrances, must be considered as a default on her part to pay the purchase price of the real estate in dispute, to the amount due upon the liens, principal and interest; and appellees, having paid this amount, and satisfied the liens, would be entitled, under the circumstances, to proceed against appellant for the recovery of the amount so paid, and to enforce a vendor's lien on the realty conveyed to her. It is the settled rule in this state that, where the consideration in a deed is stated in general terms, the true or real consideration may be shown by either party for any purpose, by parol evidence, except to defeat the operation of the deed as a valid and effective grant, and it may be shown by such evidence that the grantee verbally agreed as a part of the consideration to pay an incumbrance existing on the real estate conveyed. Levering v. Schockey, 100 Ind. 558; Hays v. Peck, 107 Ind. 389, 8 N. E. 274, and authorities cited. Under the facts, this case comes fully within this doctrine. As a general rule, all preliminary negotiations between the parties leading up to the execution of a deed, with some exceptions, are merged in the deed; but this rule, under our decisions, does not apply to the consideration, except where the instrument specifically sets forth the consideration. In Hays v. Peck, supra, Elliott, J., speaking as the organ of this court, said: "It is an elementary doctrine that the consideration of a deed may be shown by parol; and it is impossible to give effect to this doctrine without permitting the parties to prove what agreement as to the consideration preceded the execution of the deed. The agreement as to the consideration necessarily precedes the execution of the deed; and the fact that the consideration was agreed upon some time prior to the delivery of the deed does not preclude the grantor from showing what constituted the consideration of the deed. To hold otherwise would be to run counter to the rudimentary doctrine that it is always competent to prove the actual consideration yielded for the conveyance of land." See, also, Pickett v. Green, 120 Ind. 584, 22 N. E. 737; Nichols, Shepard & Co. v. Burch, 128 Ind. 324, 27 N. E. 737; Smith v. McClain, 146 Ind. 77, 45 N. E. 41; Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N. E. 802. The second paragraph of the complaint is sufficient, and there was no error in overruling the demurrer thereto. The facts stated in the special finding fully support those set up in the second paragraph of the complaint, and sustain the trial court's conclusion of law. The evidence is not before us, for the reason that it does not appear from the record that the bill of exceptions said to contain it was filed with the clerk or in open court. This is essential. See act approved March 8, 1897 (Acts 1897, p. 244); Miller v. Railroad Co., 143 Ind. 570, 11 N. E. 801, and 42 N. E. 806; Drake v. 50 N.E.-6

State, 145 Ind. 210, 41 N. E. 799, and 44 N. E. 188. The evidence not being in the record, we cannot consider nor review any questions depending thereon which appellant seeks to present. There being no available error, the judgment is affirmed.

SCHOOL TOWN OF WINAMAC v. HESS et al.1

(Supreme Court of Indiana. April 22, 1898.) MUNICIPAL CORPORATIONS-CONSTITUTIONAL LIMIT OF INDEBTEDNESS-CONTRACTS-CONSIDERATION. 1. For the erection of a school house a town agreed to pay a sum which raised its indebtedness so that it exceeded the constitutional limit by one-half the amount of the contract price. The contractors gave a bond for the performance of the contract, but abandoned the work before it was completed. Held that, since such portion of the contract price which was within the constitutional limit was a valid indebtedness, it constituted a sufficient consideration for the contract, and the contractors and their sureties could not, therefore, escape liability for failure to complete the building on the ground that the contract was invalid, as creating a debt in excess of the town's constitutional limit.

2. Under its contract for the erection of a school house, a town was authorized to complete the building and charge the expense to the contractors if they failed to perform their agreement. Held, that the contractors, who abandoned the work before its completion, could not recover of the town for material left by them upon the ground, and used by the town in completing the building, if the cost of completing the building above the contract price exceeded the value of such material.

The

3. Contractors abandoned a building partly completed, and upon which there was a sum due them above what they had received. owners, under the terms of the contract, completed the building and charged the expense above the contract price to the contractor. Held, that the contractors could not recover the amount due them at the time of the abandonment if the amount, above the contract price, expended by the owners in completing the building, together with the damages for noncompletion within the agreed time, exceeded the amount of the contractors' claim.

Appeal from circuit court, Marshall county; A. C. Capron, Judge.

Action by the school town of Winamac against Jasper N. Hess and others. Judg ment for defendants. Plaintiff appeals. Reversed.

B. Borders, for appellant. J. D. McLaren, for appellees.

MCCABE, J. The appellant sued the appellees Hess and Myers as principals, and Gilmore and Corbin as sureties, on a bond executed by them to appellant on May 26, 1892, conditioned that Hess and Myers should, as contractors, construct a school building in the town of Winamac for $16,896.60, in all respects according to and in compliance with the terms, stipulations, and specifications of a contract executed by them on the same day to appellant. The defendants Hess and Myers tiled a cross complaint, seeking to recover a judgment against the plaintiff. A trial of the issues resulted in 1 Rehearing pending.

a special finding of the facts, upon which the court stated conclusions of law favorable to appellees, upon which the court rendered judgment in effect that the plaintiff take nothing by its suit, and that the defendants Hess and Myers recover judgment against the plaintiff on their cross complaint for $1,182.27.

The substance of the facts found is: That in March, 1892, the only school house in Winamac was destroyed by fire, and it became necessary to construct a new one to provide common schools for the 400 children of school age residing in said town. The town owned a suitable tract of ground within said town for such a building, and the school trustees procured plans and specifications for a school building of suitable size at a probable cost of $19,000. The school town then asked the town to issue and sell bonds to the amount of $15,000, and turn the proceeds over to the school town, to be used in the proposed building. The proper steps were taken, and the order made, for the issue of such bonds in April, 1892; and on May 26, 1892, appellant and appellees Hess and Myers entered into a written contract, by which said appellees bound themselves to furnish the material and construct the building on said piece of ground according to the plans and specifications, for which appellant was to pay them $16,896.60. This written contract is set out in full in the special findings. On the same day the contractors as principals, and appellees Gilmore and Corbin as sureties, executed to appellant a bond in the penalty of $10,000, conditioned for the faithful performance of the building contract. This bond, also, is set out in full in the findings. Among other things, it was stipulated in the building contract that the contractors should begin work at once, and should complete said building on or before November 1, 1892, and if they failed to prosecute the work with diligence the appellant might terminate the contract, take charge of and complete the building, and, should the cost of so completing the buiding exceed the amount due the contractors at the contract price, the contractors should pay to appellant the difference. It was also stipulated therein that the contractors, among other things, should pay $10 per day for each day the building remained unfinished after the 1st day of November, 1892. The contractors began work at once, and continued at work until October 18, 1892, and then refused to proceed further with the work. The architect, as the contract authorized him to do, certified to the trustees of appellant that this was a sufficient excuse for the termination of the building contract. The trustees then notified the sureties upon the bond, as the contract authorized and required them to do, of the failure on the part of the contractors, and that, if the work was not resumed, the appellant would terminate the contract, employ other workmen, and

complete the building. The bondsmen refused to complete the work, and thereupon the employment of the appellees as contractors was terminated by the appellant, and it took charge of the work, and completed it according to the contract. This contract provided that appellant should pay the contractors at stated periods, as follows: At the end of each three weeks, or thereabouts, the architect should make an estimate and certify to the school board the amount of work completed, and thereupon the school town should pay to the said Myers and Hess the amount of said estimate, less 15 per cent. thereof. It further provided that, in case of the termination of the contract by the ap pellant, it should take possession of any unused material on the premises, and thereafter the contractors should not be entitled to any further payment until the work should be wholly finished, and if thereupon the unpaid balance of the contract price should exceed the expense incurred by appellant in finishing the work, no further payment should be made to the contractors, and in case such unpaid balance did exceed such expense, such excess should be paid to the contractors by appellant. That, while Myers and Hess were at work upon said building, the architect from time to time made estimates in writing of the work and material furnished by them, delivered said estimates to appellant, and gave a copy thereof to said Hess and Myers, and upon presentation of said copy to appellant's trustees they paid to Hess and Myers the amount of each estimate, less 10 per cent. thereof,-the dates and amounts of which estimates, and times of payment thereof, are as follows: The first estimate June 22, 1892, for $1,211.22, paid $1,090.10; second, July 13, 1892, for $1,055.23, paid $947.71; third, August 8, 1892, for $565.50, paid $508.95; fourth, September 1, 1892, for $551.50, paid $496.35; fifth, September 20, 1892, for $833, paid $749.70; sixth, October 12, 1892, for $916, paid $824.40,making the total estimates $5,132.46, and the total payments $4,619.21. That after the board of trustees of the civil town had ordered the issue and sale of the $15,000 of bonds already mentioned, a taxpayer of said town began suit in the circuit court of the county to enjoin the issue and sale of said bonds, after the order had been made but before their issue, on the ground that the issue and sale of that amount of bonds would exceed the constitutional limit of 2 per cent. of the taxable property of said incorporated town. A perpetual injunction was awarded by the circuit court, which judgment on appeal to this court was affirmed. Town of Winamac v. Huddleston, 132 Ind. 217, 31 N. E. 561. That the assessed valuation of all the property within the town of Winamac for the year 1891 was $336,000. At the time of the contract there were bonds of said town outstanding and unpaid amounting to $2,700, the proceeds of

which had gone into the school building previously destroyed by fire. And appellant, at said date of May 26, 1892, was further indebted upon school orders aggregating $149.54. The salary of its trustees for the year ending June 1, 1892, aggregating $90, was unpaid. It had a contract with Joseph E. Mills by which it was to pay him for preparing plans and overseeing the work the sum of $700, to be paid $200 when the contract was let, and $200 when the brick walls were up, and $200 when the building was plastered, and $100 when the building was complete. And neither the town of Winamac nor the school town was otherwise indebted. On the day of the execution of the contract and bond aforesaid, the school town of Winamac had on hand cash belonging to its special school fund, for use in the construction of a public school building, the sum of $4,800. And after the decision of this court aforesaid, the school trustees of the appellant presented to the board of trustees of the civil town of Winamac a petition in writing, asking said civil town trustees to issue and sell bonds to the amount of $5,000, to raise funds with which to complete said school building, and, pursuant to said petition, on July 6, 1892, they entered an order to sell bonds amounting to said sum of $5,000. Afterwards, on August 22, 1892, said bonds were duly issued and sold, and the proceeds thereof, $5,000, in cash, was paid over to the school trustees of appellant to be used in defraying the expense of the erection of said school building. After the execution of said building contract the appellant received from the tax levied for special school purposes the following sums: On June 10, 1892, from the county treasurer, $683.78; on December 29, 1892, from the same source, $487.21; on June 9, 1893, from the same source, $914.96; on July 6, 1893, from the town treasurer, $700; on December 21, 1893, from the county treasurer, $596.38. That from time to time during the year 1893, beginning with March 8, 1893, and ending December 12, 1893, the school trustees issued orders against the special school fund of the school town of Winamac, payable to various persons therein named, and sold said orders for their face value in cash, aggregating $9,700. And in January, 1893, the town of Winamac had a surplus in its treasury of $1,000, which, upon request of the school trustees, was loaned to appellant for use in said building. All of said funds were placed in the special school fund of said school town of Winamac, said fund being made up of the following items, to wit:

Cash in special school May 26, 1892 $ 4,800 00 Total from tax levy, as above.... 3,392 00 Total from sale of bonds, as above.. 5,000 00 Total from sale of orders, as above 9,700 00 Received from surplus funds of town 1,000 00 $23,892 00

And out of said special school fund said school trustees of appellant paid for material,

and employed and paid workmen, and completed said school building according to the original plans and specifications. Said building was finally completed and ready for use November 1, 1893. After paying the aforementioned estimates to the contractors, Myers and Hess, the appellant, in completing said building according to the contract, was compelled to pay the sum of $15,429.04, in addition to the sum paid on estimates to Myers and Hess, making the total cost of the building to appellant $19,998.45. Prior to their abandonment of the contract, appellees Hess and Myers had furnished material and done work upon said building of the value of $5,430, for which they had been paid $4,619.21. The material which had been brought upon appellant's said grounds by Hess and Myers, and not put into the building by them, was afterwards used by appellant in the completion of the building, and was worth $969.69, and the interest accrued on that amount since October 18, 1892, is $213.18. That at the time said Myers and Hess abandoned said work upon said building, the plaintiff had paid in full all estimates which had been made, and said plaintiff had yet remaining in its treasury, belong. ing to its special school fund, $3,873.97, which might be used in the construction of said building, and which was afterwards used by said school town to complete said building. That, when Myers and Hess abandoned the said work, they demanded the right to remove all material then on the ground and not in the building, and the plaintiff refused to permit them to do so. said Myers and Hess thereupon demanded of the plaintiff payment to them of $3,000, which they claimed was due them for work and material furnished to plaintiff, and plaintiff refused to pay them anything; and at the same time Myers and Hess demanded that a correct estimate be made of all work and material furnished by them, and that they be paid according to such correct estimate, and plaintiff refused to make any different estimate or pay anything to said Myers and Hess. By said failure of said Myers and Hess to complete said building according to contract, the plaintiff was kept out of the use of the same from November 5, 1892, to November 1, 1893, a period of 360 days, and was compelled to pay the sum of $3,102.85 for the construction of said building over and above the contract price for the same. And prior to the commencement of this suit plaintiff made a demand on the defendants Corbin and Gilmore for the settlement of said matters, and demanded payment of said extra costs, and for $10 per day damages for each day the completion of said building was delayed by the failure of said Myers and Hess, and said Corbin and Gilmore refused to pay any sum to this plaintiff.

And

The trial court stated the following conclusions of law: (1) That the contract and